Have you been charged with driving under the influence of alcohol or a drug? Is it your third offence?  You may be subject to a period of mandatory imprisonment.

There are certain circumstances in which a presiding Magistrate must impose a term of imprisonment if you are found guilty of driving under the influence of alcohol or a relevant drug.  This is referred to as “mandatory imprisonment”.

It is important for you to seek legal advice as soon as possible if you believe you will be sentenced to a period of mandatory imprisonment.

General drink drive penalties

In most circumstances, the presiding Magistrate will have discretion to determine the appropriate penalty for a drink driving offence.  There are many penalties that could be imposed, from a fine to a community based order.

Mandatory imprisonment

There are some circumstances when a presiding Magistrate must impose a period of imprisonment for a drink driving offence.  The circumstances are limited, and only apply if:-

  1. you are convicted of a high range drink driving offence (or an offence of driving under the influence of a drug); and
  2. in the past five years, you have been convicted of two prior offences of high range drink driving.

You will also face a mandatory term of imprisonment if:-

  1. you are convicted of a high range drink driving offence (or an offence of driving under the influence of a drug); and
  2. in the past five years, you have been convicted on two or more occasions of the following offences:-
  • any offences relating to driving a motor vehicle heard before the District or Supreme Court; or
  • dangerous operation of a vehicle.

If this applies to you, the presiding Magistrate must impose a period of imprisonment as part (or all) of the penalty.  It is important you seek legal advice as soon as possible.

Do I actually have to go to jail?

A term of imprisonment can be served in different ways.

The period may be “wholly suspended”, meaning you will not be required to spend time in custody unless you breach the terms of your suspended sentence.  Therefore, although a period of imprisonment must be imposed the sentence may be structured in a way that allows you to remain in the community and not spend time in jail.  It is important you seek legal advice to determine whether you will be required to spend actual time in custody as a result of your offence.

There is always a range in the severity of penalty that could be imposed, even in matters where a period of mandatory imprisonment applies.  The presiding Judge or Magistrate has discretion and will impose a penalty that is appropriate in your circumstances.  We can assist by ensuring the presiding Judge or Magistrate has all of the relevant information, and is aware of your particular circumstances and mitigating features.  This can result in you having a lesser penalty imposed.

You can find out more about the penalties for drink driving offences here.

If you have been charged driving under the influence of alcohol or drugs and would like legal advice about your matter, or for our office to represent you, please contact our office on 07 4963 2000 or through our online contact form below.

Michael Kane
Graduate Law Clerk
Criminal Law

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more information or assistance.

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